### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs M arch 4, 2 003
STATE OF TENN ESSEE v. JEFFERY W. ALEXAND ER
Appeal from the Circuit Court for McNairy County No. 1420A Jon Kerry Blackwood, Judge

No. W2002-01722-CCA-R3-CD - Filed May 23, 2003

Convicted of

burglary and theft of property

valued at more than $1,000 but less than $10,000, the defenda nt, Jeffery W. Alexande

r, claimson appeal that the convictions are unsupported by sufficient evidence, that the tr

ial cour t erred in admittin g copie s of photog raphs of the crime

scene, and that the trial court erroneously sentenced him as a career off ender. Because our re

view of the record, the briefs, and the a

pplicabl e law expo ses no reversible error, we affi

rm.

Tenn. R. App.P. 3; Judg ments o f the Circ

uit Court are Affirm

ed.

J AMES C URWOOD W ITT , J R ., J., delivered the opinion of the court, in which J OSEPH M. T IPTON and D AVID H. W ELLES , JJ., joined.

Paul Simpson, Selmer, Tennessee (at trial); and Didi Christie, Brownsville, Tennessee (on appeal), for the Appellant, Jeffery W. Alexander.

Paul G. Summers, Attor ney Gene ral and Repor

ter; J. Ross D ye

r, Assista nt Attorne

y General ; Elizab eth T. Rice, District Attorney Ge neral; and Jerry W. Norwood, A ssistant District Attorney General, for the Appellee, State of Tenne ssee.
OPINION

A Mc Nairy

County Circuit Cou

rt gra nd jury indicted the defe ndant and two oth e r men, Kenneth Killingsworth and Jimmy Williams, for the July 30, 200l burglary

of the Adams ville Pharmacy, see Tenn. Code Ann. § 39-14-402(1) (1997), and the theft of pharmaceuticals from the store, see id. §§ 39-14-103, - 105(3) (1997). A jury convicted the defendant of both offenses, and following a sent encin g hearing, the trial court sentenced him as a career offender to serve two concurrent, twelve-y

ear, Department of Correction sentence s.
In the light most favorable to the state, the evidence admitted at trial showed the follo wing. The pharmacist and owner of the Adamsville Pharmacy closed a nd locked the store early-2-

on the evening of

July 3 0, 2001. A

t approxima

tely 11:50 p.m., the store ’s secur ity contractor, ADT, telephonedthe police to report that the store’s alarm had been trig gered. An officer testified that he responded

immediately, and upon g oing to the rear window of the store, he saw the defendant, whom he had known for a number of y ears, raking bott les of

drugs off shelves into a

box. At some p oint, the defendant saw the officer and r an out the back door, which was passable via a de ad-bolt lock that could be levered from inside. The officer te stified that he kept his eyes on t he defe ndant and apprehended

him in the parking lot. He found no drugs on the defendant’s person. The of ficer later discovered

that the d

rive-thr ough window of the

st or e had been pried open, and the box the defendant was using to collect drugs was sitting inside the store beside the rear door through which the defendant had exited.

Becau se the officer saw Killingsworth cruising slowly about the vicinity, the

officer instructed a second of

ficer to lo cate and detain K

illingsw orth for

questioni ng, whic

h ultimately caused the polic e to belie

ve that Williams also had been involved in the burglary . About two hours after the defendant had been arreste d, an office r locate d Williams walking along the highway in the vicinity of the pharmacy

. He was carry ing a box containing bottles of pharmaceuticals taken from the store.

Williams testifi ed at t rial that he and the

defenda nt had bee

n riding around w ith Killings worth

in Killingsworth’s car. When they dr ove by the phar

macy, they

decided to break in and steal dru gs. Killingswor th drove t o the rea r of the s tore and

waited w hile the defendant

pried open the dr ive-t hrough window with a screwdriver. Killingsworth then drove away from the store to wait across the street at a restaurant owne d by Williams’ parents. Williams testified that he waited outside the pharmacy

while the defendant climbed inside through the breac hed window. The store’s alarm sounded. The defendant

handed Williams a box full of drugs and exited the window. The two
men took the box into a field that abutted the rear of the store. Williams testified that the defendant told him that the defendant was going bac k into the store. Af

ter the d efenda nt did so, Will

iams watched as the officer arrived then cha sed and caught the defend ant. Will iams testified that he waitedundetected in the field for a couple of hours and then began walking a way along th e h ig hw ay. Before long, a p olice officer stopped and arrested him. Williams testified that, prior to the defenda nt’s tria l, he had p leaded g

uilty to the off enses.
In the defe ndant’s first issue on appeal, he challenges the sufficiency

of the convict in g evidence by

asserting that the state’s witnesses were not cr edible.

In reviewing the sufficiency of the convicting evidence, we apply a fa miliar standard. Whe n an accused challenges the sufficiency

of the evidence, an appellate court ins pects th e evidentiary

landscape, including its direct and circumstantial contours, from the vanta ge poin t most agree able to the pro secution . The reviewing court the

n decide s whethe

r th e evi dence and the inferences that flow therefrom permit any rational fact finder to conclude beyond a re asonable doubt that the defendant is guilty

of the charged

crime. See Jackson

v. Virgini a , 443 U.S. 3 07, 324, 99S. Ct. 2781, 2791-92 ( 1979); Te nn. R. App. P. 13(e); State v. Duncan , 698 S.W.2d 63, 67 (Tenn. 1985). This rule applies to findings of guilt based on direct evidence, as well as circumstantial evidence or-3-

a combination thereof. See State v. Dykes , 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990), overruled
on other grounds by State v. Hooper , 29 S.W.3d 1 (Tenn. 2000). On appeal, a defenda nt no longer
en jo ys the presumption of innocence; consequently , he shoulders the burden of demonstrating that the evidence is legally

insufficient to support the conviction. State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1982).

In determining sufficiency of the evidence, the court does not replay and reweigh the evid ence. See Stat e v. Matt hews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Of critical importance in the present

ca se , w it ne ss cr ed ib il it y, the weight and value of the evidence , and factual disputes are entrusted to the finder of fact. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). This court may not substitute its inference s for those drawn by the trier of

fact from the evidence. See Liakas v. S

tate , 199 Tenn. 298, 305, 286 S.W.2d 856, 8 59 (1956) ; Farmer v. State , 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). Rather, this court extends to the State of Tennessee the stronge st legitima te view of th

e evidence conta

ined in the record

as well a s all rea sonable a nd legit imate inferences that may

be drawn from the evidence. See Cabbage , 571 S.W.2d at 835. Apply ing thes e princi

ples, we readily

discern from the record that the testimony of the state’s witnesses, whenac cr ed it ed as it ap pa re nt ly w as by t he ju ry, overwhelmingly established the defendant’s guilt. We do not revisit the issues of witne ss credi bility . The def

endant ha d his opportuni ty to test the

worth of the sta te’s ca se in the crucible of trial, wherein the jury resolved the factual issues against him. Because the evidenc e undergirds the jury’s findings, we may

not disturb those fin dings on

appeal.

In his next issue , the def

endant c omplains th at some of the photographs introduced into evidence by

the state were copies of photographs a nd some were not authen ti ca te d b y t he photographer

or any other pe rson pre sent whe

n the photo graph s were ta ken. The state counters th

is claim by arguing that the photogra phs were properly

admitted and that, in any event, the defendant waivedthe issue on appeal because he failed to make a timely objection when

the photographs were offered into evidence. We agree with the state on the wa

iver issue and nee d not anal

yze the merit s of the cl aim.

At

trial, t he defen dant did not object to the introduction of the photographs. To preservethe issue of the admission of evidence for appella te adjudi cation, t

he agg rieved p arty

must object in a timely manner. Te

nn. R. Evid. 103; Tenn. R. A pp. P. 36(a). T hus, the issue of the admission o f the phot

ographs into evi dence isnot justici able on a ppeal. Finally, the def

endant claims that the trial court erred in sentencing him as a career offender. When ther

e is a cha llenge to the len gth, ra

nge, or manner o f servic e of a se

ntence, it is the duty of this court to conduct a de novo review of the reco rd with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (1997). This presumpt ion is “con ditioned upon the affirmative showing in the record that the trial c ourt considered

the sentencing principles and all relevant fa cts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991); see State v. Hooper , 29 S.W.3d 1, 5 (Tenn. 2000). “The burden of-4-

showing that the sentence is improper is upon the appellant.” Ashby , 823 S.W.2d at 169. In the event the rec ord failsto demonst rate th e required c onsideration by the trial cour t, review of the sent ence is pu re ly de novo

. Id. If a ppellate review, however , refle cts that th e trial c ourt prop erly considered

all relevant factors a nd its findings of f act are adequa tely supporte d by

the rec ord, this court must affirm the sentence, “even if we would ha ve preferred a differ

e nt result.” State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

Tennessee Code Annot ated section 40-35-108(a) provides that a defe ndant convicted of Class D offenses, as is the defendant in the present ca se, may be cla ssified for sentencing purposes
as a career offender

if he has received “[a]t least six (6) or more prior felon y convict ions of any classification.” Tenn. Code A nn. § 40-35-1 08(a) ( 1997). Th e Code de ems “prio

r convic tion” to
mean “a conviction for an offense occur ring prior to the commission of the offense for which the defendant is being sentenced,” id. § 40-35-108(b)(1) (1997); however, “[c]onvict ions for mu

ltiple felonies committed as part of a single course of conduct within twen

ty- four (24 ) hours c onstitute one (1) conviction for the purpose of determining prior convictions,” except when the prior crimes are basedupon threatened or actual bodily injury to avictim or victims. Id. § 40-35-108(b)(4) (1997).

In the present case, the record shows that the defendant rec eived the following prior felony convicti ons:
Offense Event/Ar rest Judgment (1) possession of drugs January 14, 1991 May 15, 1991 (2) aggravate d burglary

January 12, 1991 May 15, 1991 (3) aggravate d burglary

January 9, 1991 May 15, 1991 (4) aggravate d burglary

January 2, 1991 May 15, 1991 (5) aggravate d burglary

December 26, 1990 May 15, 1991 (6) aggravate d burglary

December 22, 1990 May 15, 1991 (7) aggravate d burglary

November 24, 1990 May 15, 1991 (8) aggravate d burglary

not provided Feb. 11, 1988 (9) forgery not provided Feb. 11, 1988 (10) aggravate d burglary

September 27, 1987 Dec. 27, 1987 Although, seven of the prior felonies were disposed of on May 15, 1991, and two weredisposed of on February

11, 1988, there is no evidence of record that shows that any of the prior

felonies were “committe d” as a

single course of conduct with, and within 24 hours of, any of the oth

er felo nies. The two 1988 convictions were imposed on February 11, 1998, the date of the offenses is not provided , and we f

ind no proo f that the se 1998 of fenses w ere par

t of a single cours e of cond uct.
Ac co rd in gl y, we discern no basis for the defendant’s claim that

the trial court erred in sentencing him as a career of fender. Having adjudica ted the a ppellate issues, we

affirm t he lower court’s judgmen

ts.-5- ___________________________________ JAMES CURWOOD WITT, JR., JUDGE